The VBA Legislative Blawg is the law-related blog of Bob Paolini our government relations guru at the VBA. Bob will keep you apprised of the happenings in the Legislature and keep members up-to-date with pressing legal issues affecting the practice of law in Vermont

Friday, February 27, 2015

So it’s now one week since I met with the Speaker of the
House about the court’s budget and I’ve heard nothing from the supreme court
about the suggestion of fees to reduce the cutback. I gather from the testimony
of the court administrator (CA) yesterday at the house judiciary committee that
the court is ignoring that idea.

She proposed other money saving ideas to the committee;
well, sort of. The first is a proposal to add videoconferencing equipment to 7
correctional facilities to allow remote court hearings. The judiciary would
have to purchase not only those 7 but 14 for the 14 courthouses. The cost would
be $306,000. They are proposing a July pilot project in Chittenden County
followed by expansion in January. This should help reduce the sheriffs’
transportation costs of $2.2 million by about 25-30%. But, there will be no
savings in FY 16; there will be a net cost with savings to be seen in FY 17.

The court hopes to follow the lead of New Hampshire,
Massachusetts, Connecticut, and Virginia.

This, as some of you may remember,
has been tried before but didn’t succeed. The CA attributed that to lack of
discipline in project management and the technology at the time, although New
Hampshire has apparently been doing it for 18 years.

The court does desperately need to cut back on transport fees
as over two million dollars a year is really not at all sustainable. But this
proposal does nothing to help the cut of $500 K that’s about to hit the
judiciary hard. I’ve spoken to some members of the committee who remain
confused as to what the court intends to do for the fiscal year beginning in 4
months. You can read about the video proposal here:

The question was asked about attorneys meeting their
clients. The CA responded that defense counsel could meet their clients before
a hearing or could travel to the correctional facility and meet with and appear
with their client from there. I wonder how that will work with some public
defenders who may have clients out on bail and in the correctional centers; how
do you appear for both say, for status conferences?

The court is having a bill drafted that will cover some other
issues. I was not given a copy of it. I expect that it will bypass some appeals
to the superior court and redirect them to the supreme court. I expect it to
say that appeals from magistrate decisions will go “on the record” to the supreme
court, bypassing the family court judge.

The proposal will also include probate hearings on the record
and appeals to the supreme court on that record. You readers will have to tell me
whether all probate courts are outfitted with the equipment needed to make that
record.

In divorce cases with substantial assets at stake or complex
business valuation issues, the court wants the authority to appoint a special
master to aid movement of the case through the family court.

Finally, and I’m not sure just what this could entail, the
CA spoke about the court seeking authority to change venue by rule. I believe
she said “up to four counties”. This is part of the court’s repetition of “right
sizing” the courts. Although the supreme court does not support closing courthouses.
This proposal will require some study and comment when it’s on paper.

I expect the House Judiciary Committee will return to these proposals
on Tuesday March 10 and Thursday March 12. Stay tuned.

Finally, the governor has made his appointments to the
Judicial Nominating Board; now we’re only awaiting the senate’s three names. I expect
legislative counsel will convene the Board after the senate appoints its three
members on Tuesday, March 10th. At the first organizational meeting
the Board will adopt rules and elect a chair. Then the governor is expected to
ask them to fill one judicial vacancy.

So, this is my last report until after the Town Meeting
break. Thanks as always for reading and don’t forget to buttonhole your reps
and senators next week and ask that the court be fully funded.

Wednesday, February 25, 2015

It’s time I updated what’s been happening in Montpelier. First
of all, the House chose its members of the Judicial Nominating Board. They are
Bill Lippert, Maxine Grad, and Patti Komline. I spoke with Sen. Mazza yesterday
about the Senate’s appointments. He is part of the three member Committee on
Committees and said he’d urge Pro Tem John Campbell and Lt. Gov Phil Scott to
make their appointments soon. And, we are still awaiting the governor’s two
appointments. It’s hoped that then the new JNB is complete, at least one
judgeship may be filled. If that means that the JNB will have to meet during the
session, then that’s what will happen. By the time the notice of application
goes out, followed by the interview period etc, it’ll be summer before names go
to the governor. According to Chief Superior Judge Grearson, he’d like a new
judge or judges to be ready to be on the rotation schedule by September.

So, where are we on judicial funding issues? After hearing
many of you, some probate judges, trial court clerks, VBA Board members talk
about increasing fees I took that message to members of the house
appropriations committee. Some members seem interested in that conversation. Remember
though that the fees (and fines) generated go to the general fund and not to
the court’s budget. My approach was to ask that, in exchange for increased
dollars to the general fund, that the court would be given a pass on the proposed
$500K cut this year. In exchange the court could continue its meetings with its
“justice partners” through the rest of this year and report to the legislature
in January where to find efficiencies and potential savings.

Last Friday I made that pitch to the speaker in a one on one
meeting. His response was that he’d be willing to see a “dollar for dollar” swap-
any increase in fees would reduce the court’s cut. He wasn’t able to go
further. I communicated that message to the chief justice an court
administrator within minutes of leaving that meeting. To date, I haven’t heard
from the court as to whether this is a direction they want to pursue. I know that
the speaker talked about that idea to the chair of the senate appropriations
committee Jane Kitchel; she is also interested.

Yesterday afternoon the chair of the Senate institutions
Committee, Peg Flory, asked me to sit in
on a 3:15 hearing on the “judiciary protocol for prioritizing of capital
projects”. The question was whether to go forward with the $5.2 million capital
project at the Lamoille courthouse or redirect that money to a case management
system. The court administrator (CA) told the committee that the “priorities of
the court are changing given the current cuts”. The commissioner of building
and general services objected saying that substantial money had already been
spent on engineering etc. Also, he said they have already rented space for
court staff who will be relocating in April in preparation for the
construction. She also said that redirecting that money will not result in any
savings in FY 16. Sen. Mazza asked what the return on that investment would be;
Sen. Rogers said that the cost of running IT systems is always higher than
planned. Again the CA responded that some states claim a 20% savings. She doesn’t
expect VT will see any savings because “we’re underfunded already”.

Senators Mazza and McAllister asked about increasing fees
and again the CA didn’t really respond. All she said was that last year was the
court’s three year cycle to have fees reviewed and, with the exception of
removing the surcharge and rounding up the filing fees, the fees were not
increased. So it seems as though the door may be open to moving forward on
this.

Everywhere in the statehouse people interested in the judiciary
are talking about the funding crisis hitting the courts. I’ve asked all of you
at least twice now to talk with your representatives and senators about fully
funding the judiciary. You should see many of them next week at your town
meetings. Make sure they understand what this means for access to justice and
preservation of the rule of law.

OK, back to senate institutions. The CA spoke to moving to
increase use of videoconferencing, which of course would require an investment
upfront. There were no details as to cost or timing. She also spoke to
regionalization of termination of parental rights cases (TPRs). Sen. Flory
asked about the experience with the use of video for criminal cases in the
past. The CA responded that the technology is better today and these systems
are in use in other states. She thinks a 25-30% savings in the cost of
transport and travel if the money is invested in video technology.

The hearing ended with the CA repeating the well-known
limitations in the paper filing system, data entry 30 year old system that our
courts use. She also raised the issue of whether every county should have a “full
capacity court”. Should some courthouses be outfitted with the newest
technology and trials held there, even if it means taking a case to another county?
I’ve run that idea by some trial lawyers and they seemed interested; this is especially
true among those who practice in the federal district court. She repeated that
the supreme court does not support closing courts.

Two final issues were raised: at what level are courthouses
maintained? Should some of that cost be shared by the county? Finally security
costs came up again. This time it was raised by Sen. Mazza. Earlier in the day
in my conversation with Sen. Kitchel, she raised the same question.

So that’s where we are at the moment. I’ll continue to
report any news. Thanks for staying informed and for reading these posts.

Thursday, February 19, 2015

Last night’s public hearing on judicial retention was
uneventful. There were only three witnesses, all of whom testified in support
of Judge Teachout. No other witnesses appeared to speak for or against the
other judges or magistrates.

Before the public hearing began, the committee interviewed
our newest judge, Judge Waples. She will be interviewed by the senate judiciary
committee on Friday morning and hopefully confirmed soon thereafter. As she is
filling the superior court seat once held by Judge Crawford, which term expires
31 March 2015, she needs to go through the retention process. Obviously, she hasn’t
even sat as a judge yet so there is not record on which to base a retention
vote. It’s just one of those quirks of our system.

This bill will affect each of you and the notaries in your
office. You should read it and send me your reaction. I testified yesterday
preliminarily and addressed the cost issue, the examination for first time
notaries (yes really!), the continuing education, etc. I think we can support
the online registration, the qualifications and standards set out in 206 but
there is some dispute as to the remainder of the bill. Please let me know your
thoughts.

Our Family, Juvenile, and Criminal Law Sections have been
following S. 9 since the first week of the session. The senate judiciary
committee voted the bill out yesterday unanimously and sent it to the
appropriations committee. It’s there because of funding included in the bill
for a legislative oversight committee. Here’s a link to the amended version of
S. 9:

The Joint Committee on Judicial Retention will hold a public hearing on Wednesday, February 18, 2015, starting at 7:00 pm. The hearing will be held in Room 11 at the State House. Members of the public interested in testifying regarding the above Judges may sign up 30 minutes prior to the hearing. Each person will have 5 minutes to testify and the hearing will adjourn at 8:00 pm.

Thursday, February 12, 2015

Yesterday was a busy day for the VBA. It began in the House
Government Operations Committee where Deputy Secretary of State Chris Winters
presented a bill that would regulate notaries public. The bill, H. 206 can be
read here:

It is needed, he said, to provide standards for notarial
acts, create a stable system of regulation and insure Vermont’s standards are
compatible with those of other states. Applications and renewals would be
online an run by the secretary of state’s office of professional regulation. The
cost would double ($30 every two years instead of every four) with the money
going to the state (I believe) instead of the counties. You should all review
the bill as it will affect you and members of your office staff. Please get
your comments, if any to me as the VBA will be asked to weigh in.

I met with the Executive Director of Vermont Legal Aid, Eric
Avildsen, in the morning shortly after he spoke with the appropriations committee
member responsible for his (AHS) budget. The governor has recommended a
reduction in the VLA grant of $47,000. While that amount may seem small, those
dollars bring in a dollar for dollar federal match, making that 47K cut almost
a $100,000 loss. If that happens, VLA will be funded at about the 2008 level. In
actuality it needs a $75,000 increase just to keep up with inflation.

I spent the afternoon with the judiciary in the house
appropriations committee as they made their budget presentation. The chief
justice led off with an overview of the underfunding crisis and his use of
vacancy savings to stay within budget. But he called vacancy savings a “cancer
on the branch; continued erosion of support for the courts is leading to
distrust and disrespect of the courts”.

He was followed by court administrator Pat Gabel and Chief
Superior Judge Brian Grearson along with CFO Matt Riven. They all testified
firmly and effectively in opposition to the governor’s recommended cut of
$500,000 in FY16. This 9 page document is worth a read, especially pages 4 to
6:

The budget bill will not be voted out of the House until
after the Town Meeting recess. I urge all of you to contact your representatives
now to ask that they NOT support the reduction in judicial funding. Don’t just
call, email or leave a message; try to start a conversation and try to get a
commitment that they will stand with the court on its budget request. Follow up
with your legislator at Town Meeting and let me know where he or she stands. This
has to be a grass roots effort and, as officers of the court, we have a
responsibility to preserve our system of justice. We need your help; it’s time
to act.

Finally, I ended my day at the evening meeting of the
judicial retention committee where three judges and two magistrates were
interviewed. These meetings are generally cordial with the candidate for
retention making an opening statement as to why he or she wants to continue to
serve. The committee then questions each one usually basing questions on the results
of the surveys.

Judge Grearson was up first and his conversation focused on
three of his roles: until recently as a full time trial judge; his role in
treatment court; and now as chief superior judge. What impressed me the most of
his comments was something he alluded to in appropriations earlier in the day. He
said vacancy savings in not a savings. “you’re not saving, you’re compromising”.
There’s more to managing a court system that trying to save money by not
filling positions. You can only do so much when morale is as low as it is right
now.

If I recall correctly Matt Riven said there are 22 unfilled
positions in the judiciary. We know that there are 3 open superior judge
positions, with another coming on February 28, when Judge Suntag retires. The fifth
will follow with the retirement of Judge Wesley this summer (I believe). And there
is talk of a sixth before September. Also, Magistrate Shelly Gartner is
retiring at the end of March. Judge Grearson can only move bodies around so
much to try to keep all dockets covered. We’ve heard from many of you about
delays already; without restoration of the funding needed, it’s going to get
worse.

Judge Teachout followed and was immediately hit with a
comment form the committee that they were disturbed at the high number of
negatives in the survey responses. Comments such as “arrogant, disrespectful,
hostile and demeaning” were heard. The judge was taken aback by those and,
although she admits to be formal in court and to insisting on following the
rules, she did not see herself in that way. But, as all retentions do, this
makes for a time of self-reflection and improvement.

I have to relate something she said though because it seemed
so odd to me. While some respondents complained about formality, Judge Teachout
spoke about having to remind counsel in court to rise when addressing the
court! Maybe I’ve been out of practice too long but I never heard anything of
the sort. Have we really gotten that lax? Are we no longer mentoring new
lawyers? Should the VBA be training new lawyers about protocol? Aren’t law
schools doing that? It surprised me and I know it surprised the other judges in
the room.

Judge Van Benthuysen addressed two issues in his comments:
first, he said that one year rotations are too short, especially for judges
that cover treatment courts. Secondly, he questioned our practice of generalist
judges saying “we’re not all equally good in all dockets”.

The two magistrates Mary Harlow and Christine Hoyt, facing
retention for the first time, were well received. Each spoke to being nervous
with eh new process and each felt humbled by reading comments about their
performance. They did well overall. Each was asked about how they handle a case
when only one side is represented. They spoke to their duty to help develop the
evidence and the ways they may use to do that.

Sorry for the length of today’s post but, as I said at the
beginning, it was a busy day. As always, thanks for reading. But now we need
you to act. Call your legislators; meet them at town Meeting; let them know of
the crisis the court is facing. Thanks.

Tuesday, February 10, 2015

Sorry I haven’t reported for a few days but I traveled out
of state for the ABA Mid Year Meeting; yes, it was in a warmer and sunny place-
Houston, TX. Since I last posted the House passed the Uniform Transfer to
Minors Act and sent it to the Senate. Now, the Senate will hold it until after crossover-
the day when bills (except money bills) must be passed by one chamber in order
to receive consideration in the other. That date, this year, is March 13th,
although there is some flexibility in the first year of a biennium.

Tomorrow the House should act on the Uniform Interstate
Family Support Act (H. 86). VBA Family Law Section Chair Penny Benelli
testified in support of the bill which needs to be passed in order as a
condition of continued receipt of federal funds supporting child support
programs.

Also tomorrow the Joint Committee on Judicial Retention will
interview the three judges and two magistrates up for retention this year. Here
is the committee schedule should you be interested in providing input to the
committee or to testify at the public hearing.

A lot has been happening, although mostly in the background,
on the judicial budget issue. There’s not much to report here except to say
that the Senate agrees with the House on the budget adjustment to the judiciary
budget. The $500,000 cut proposed by the governor for FY 16 is still in play. The
Supreme Court convened a meeting yesterday of about 20 stakeholders to discuss
options to save some money. Those options include “right-sizing” use of
courtrooms; increased use of video conferencing; reduced prisoner transport;
specialty court dockets, etc. Of course, closing courthouses (Grand Isle and
Essex) came up as did reducing the number of probate courts. But nothing
conclusive came out of that meeting; there was no consensus on a plan. Tomorrow
afternoon, the CJ is presenting the court’s budget to the House Appropriations
Committee. It’ll be interesting to hear his summary of yesterday.

I’ll update this as soon as I can after tomorrow’s hearing. Thanks
for reading.

Wednesday, February 4, 2015

Two senate committees- judiciary and health & welfare- continue to work on S. 9, an act relating to improving Vermont's system for
protecting children from abuse and neglect. The bill was the result of a summer
study committee convened after the death of two children in DCF custody. The VBA
Family, Juvenile, and Criminal Law Sections are reviewing the bill and
considering their positions on the changes being proposed. DCF and Chief
Superior Court Judge Brian Grearson are involved in reviewing it also.

The Uniform Transfer to Minors Act moved to third reading
yesterday after the house approved the amended version as reported by the
judiciary committee. I expect the bill will pass the house this afternoon and
be introduced in the senate on Friday.

Later today the newly constituted Joint Committee on
Judicial Retention will hold its organizational meeting. Here is the membership
of the new committee:

JUDICIAL RETENTION COMMITTEE – 2015

House Members Senate Members

Willem Jewett Peg
Flory

Chip Conquest Joe
Benning

Barbara Rachelson Alice Nitka

Gary Viens Michael
Sirotkin

Judges up for retention this year include Judge Grearson,
Judge Teachout and Judge Van Benthuysen. Magistrates Harlow and Hoyt are also
up for retention.